On December 22, 2010, the Security Council voted on S/RES/1966 (2010) (Resolution 1966) to establish the International Residual Mechanism for Criminal Tribunals (Mechanism). As the international community has anticipated the end of proceedings before several international tribunals, informal working groups composed of tribunal officers, donors, and United Nations officials sought to determine the best way to address residual issues. The groups debated a range of issues including: whether the necessary residual functions required semi-permanent institutions or ad hoc responses, whether one mechanism should be established for all international criminal tribunals or if each tribunal should have its own mechanism, and the extent to which cost and efficiency should influence the options. Resolution 1966 establishes separate Mechanisms for the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), to be located in the Hague and Arusha, respectively. The Mechanism for the ICTR will continue the “jurisdiction, rights and obligations, and essential functions” of the ICTR beginning July 1, 2012.
State cooperation with the Mechanism in handling many of the residual issues as they arise will be necessary to ensure that it remains a “small, temporary and efficient structure” with its operations reducing over time, and does not develop into a complex replacement institution. The ICTR’s December 2010 Completion Strategy Report highlighted many issues that will be of concern to the Mechanism and cooperating states, such as prosecution of remaining fugitives and relocation of individuals acquitted or convicted by the ICTR or the Mechanism.
The ICTR has not yet prosecuted ten indicted fugitives that remain in neighboring countries. As discussed in the Completion Strategy Report, the ICTR particularly seeks cooperation from the Democratic Republic of the Congo, where most of the fugitives remain, and Kenya, where Félicien Kabuga, accused of financing the 1994 genocide, allegedly lives. While the ICTR has attempted to track these individuals and work with national police forces to secure their arrest, it is likely that the Mechanism will inherit the responsibility of prosecuting them upon arrest. Article 1 of the Mechanism’s Transitional Arrangements states that the Mechanism “shall have competence over” a fugitive arrested after the commencement date of the Mechanism. However, according to Article 6 of the Statute of the Mechanisms, the Mechanism must make every effort to refer cases to national courts, after considering the gravity of crimes charges and the likelihood that the accused will receive a fair trial. After the Mechanism refers a case to national courts, it is required to assist the state upon request in the investigation, prosecution and trial of an accused, and monitor the case’s progress.
Additionally, the Mechanism will require state cooperation in relocating individuals who were acquitted or who have served their sentences, but who have not been resettled and remain in safe houses in Arusha. In his speech to the UN Security Council, President of the ICTR Judge Byron explained that some of these individuals are in a “legal vacuum,” and many others will be in similar situations in the future as they complete their sentences. The Mechanism will assume responsibility for ensuring that these persons are relocated, a task necessary to ensure the “interests of justice and the rule of law,” but impossible without state cooperation.
Resolution 1966 passed by a vote of fourteen to none, with Russia abstaining because it believed that the ad hoc tribunals had sufficient time to complete their operations in accordance with the Completion Strategies. Regardless of whether the ICTR completes its operations by the projected date, there will undoubtedly be residual issues that must be addressed to avoid undermining the breakthrough achievements of the ad hoc tribunals. Just as state cooperation is required to promptly fulfill the ICTR Completion Strategy, the subsequent Mechanism will also require state cooperation to ensure its responsibilities gradually diminish, ultimately resulting in the accomplishment of the ICTR mandate.